WEST ZONE-II REGIONAL CONFERENCE
ADDRESS AT SESSION-2 ON “ELEMENTS OF JUDICIAL BEHAVIOUR”
ON 24TH FEBRUARY, 2024 AT JODHPUR
“यतो धर्मस्ततो जयः ”
is the slogan of the Supreme Court of India. It means where there is
Dharama or righteousness or truth, it alone will prevail i.e. “सत्यर्ेव
जयते” truth alone triumphs.
Man is a social and civilized animal as distinguished from other
living beings who normally live in jungles. The law of jungle “Might is
Right” cannot be applied to human beings who are ordinarily
governed by the rule of law. The concept of law and justice is as old as
human civilization. A successful judicial system is the hallmark of any
developed society.
It said that “Courts are to dispense justice, not to dispense with
justice”. This is possible only if lawyers and judges who comprises the
judiciary maintains the highest standards of ethics and judicial
behavior.
Today, we have gathered here in this session to dwell into the
heart of our legal system to examine essential and often complex
subject of judicial behavior.
1
I begin with the profession of law which according to the great
thinker Cicero is the most noble profession and the lawyers are the
high priests of the shrine of justice. People used to regard lawyers as
peace makers. It is said that “if you want peace, work for justice as
lawyers do”.
The flip side of the coin is that the practice of law has become
more of a business and less of a profession because of elements of
commerce and immorality creeping into it. Thus, people have started
denouncing lawyers. Therefore, it is necessary to focus upon
professional ethics or judicial behavior of both the wheels of chariot of
justice.
I may remind that a lawyer has a multifacet personality. He is an
officer of the court as well as its ambassador outside. He owes duty to
his client, to his opponent, to himself, to Court and also to the society.
He also owes duty towards the junior members of the Bar. It is the
responsibility of the senior lawyer to ensure that the new generation
entering into the profession of law turns out to be good lawyers, jurists
and great judges. They should provide them with proper training and
guidance.
A small but a real story would be beneficial to bring home the
point on ethical behavior of lawyers.
2
An advocate on record of the Supreme Court wrote a letter to the
Law Minister of Maharashtra. He apart from other things wrote "You
might have got an advocate on record in this Court but I would like to
place my services at your disposal if you so wish and agree." This was
treated to be unethical. Proceedings for professional misconduct was
drawn against him which travelled up to the Supreme Court. The
Supreme Court observed that:
"he had mischosen his profession. The letter amounted to
soliciting brief and that apparently he was a man of weak
moral fibre. If he was ignorant about the elementary rules
of professional ethics, he had demonstrated the
inadequacy of his training and education befitting a
member of the profession of law. If he knew that it was
highly improper to solicit brief and then he wrote the post
card in question, he was a very unworthy member of the
learned profession."
Accordingly, the advocate was punished and was suspended
from practice for 5 years. This used to be the standard of ethics
expected of the lawyers but now it has all dwindled.
Now let me come to the judicial behavior of the Judges.
3
The Judges of yester-years used to maintain high standards of
impartiality and good behaviour. The principles of judicial behaviour
have ancient roots. According to a Sanskrit maxim persons entrusted
with judicial duties are supposed to be learned in Vedas and wise in
worldly affairs. People trust the courts more than the administration;
they look upon the judiciary for the protection of their rights & liberties
and for protection against hazards of bureaucracy.
Before I go on to explain the elements of judicial behaviour, we
need to understand why appropriate judicial behaviour or conduct is of
a paramount consideration for a judge. I would like to quote Justice K.
Ramaswamy from his decision in C. Ravichandran Iyer v. Justice A.M.
Bhattacharjee1. He beautifully wrote, and I quote:
“...The bad behaviour of one Judge has a rippling effect on
the reputation of the judiciary as a whole. When the
edifice of the judiciary is built heavily on public
confidence and respect, the damage by an obstinate
Judge would rip apart the entire judicial structure built in
the Constitution…. Bad conduct or bad behaviour of a
1
Sumeet Malik, Thus Spake Their Lordships, (Eastern Book Company, Lucknow, First Edition, 2016).
4
Judge, therefore, needs correction to prevent erosion of
public confidence in the efficacy of judicial process or
dignity of the institution or credibility to the judicial office
held by the obstinate judge.”2
It can be said that judicial ethics are the basic principles of right
action of the judges. It consists of or relates to the moral action,
conduct, motive, or character of judges; what is right or befitting for
them.
A judge should be austere and restrained, impartial in
temperament, steadfast, God-fearing, assiduous in his duties, free from
anger, leading a righteous life and be of good family. The conduct of
the judges, their neutrality, impartiality, independence and the judicial
discipline are all essential components of the good judicial behavior of
a judge.
A judge ought to remember that he is not himself an author of
his judgments - he is only an actor/ facilitator who has to play his role
conforming to the script representing the Will of the Almighty God
who is the real story writer.
2
C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457, paras 25 and 26.
5
It is for this reason that a judge is rarely heard claiming that a
particular judgment was written by him or a particular sentence or
decree was pronounced by him. He would always feel and proclaim
that all that he had done or he does is to carry out the will of God. It is
rightly said that Judicial Officers discharge divine functions though they
are not divine themselves. In discharge of their divine duties they have
to live like a hermit and work like a horse.
Socrates correctly described the essential qualities belonging to
a good judge: “To hear courteously; to answer wisely; to consider
soberly; and to decide impartially.”3
The following words of Dr. K.N. Katju are very relevant and
important words of wisdom:
"Of course, the ideal judge would, by his method and
behavior, ensure that every litigant left his court with a
feeling that he had a fair hearing and that he or his
counsel had not in any way been hustled. There are many
ways in which this feeling can be created without
permitting undue procrastination of argument or the
hearing. I have seen several judges do it to perfection."
3
David P. Sterba, (a retired Illinois appellate justice and a former presiding judge and trial judge ) “Good judicial
temperament the hallmark of a good judge”, Chicago Daily Law Bulletin Available at
https://www.chicagolawbulletin.com/law-day/2015/david-sterba-forum-ld2015.aspx
6
At the same time, a judge should not sit with any pre- conceived
notions but with open judicial mind. Justice demands that the judges
should not approach a cause with any pre-conceived notions.
In his memoirs, Kanhyia Lal Munshi referred "judicial
mindedness" as a component of the broader expression "judicial
propriety". He writes:-
"By judicial mindedness I mean the quality in a judge of
not being influenced by the papers read before the case is
opened; of being ready to listen to counsel till the end
with an open mind; for having scrupulous regard for
relevancy and yet neither too talkative nor too silent nor
dogmatic; of weighing the pros and cons of relevant
points with unbiased mind, and writing the judgment in
which all the points are dealt with in proper perspective."
“Judicial Officers cannot have different standards, one in the
court and another outside the court. They must have only one standard
i.e. rectitude, honesty and integrity.”4
The judicial propriety or behaviour does not end in the court
room. It is equally to be observed in private life by the Judge. He is to
4
Daya Shankar v. High Court of Allahabad (1987) 3 SCC 1, para 11.
7
conduct himself in conformity with certain time-honoured standards
such as to avoid familiarity with public personalities and invitation from
persons likely to have court cases before him. He or his family
members should not make any investment in any business venture
which may likely to embarrass him in discharge of his duty. In short, the
private conduct of a Judge must also be virtuous.
A judge is supposed to be neutral and has to act like an umpire
in any game. In other words, he has to be impartial. Neutrality and
impartiality goes hand in hand and is very basic to the administration
of justice and is one of the elementary rule of natural justice.
I quote former Chief Justice Hamidullha Beg from one of his
Judgements-
"Judges must, no doubt, be impartial and independent.
They cannot, in a period of intensified socio-economic
conflicts, either become tools of any vested interests or
function from the Bench as zealous reformers
propagating a particular course. Nevertheless, they cannot
be expected to have no notions whatsoever of their own,
or to have completely blank minds on important
questions indicated above which, though related to law,
really fall outside the realm of law. They cannot dwell in
ivory towers or confine their processes of thinking in
8
some hermetically sealed chambers of purely legal logic
artificially cut off from the needs of life around which law
must respond. Their differing individual philosophies,
outlooks and attitudes on vital questions resulting from
differences in life, will often determine their honest
choices between two or more reasonably possible
interpretations of such words as 'amendments' or
constitutional power' in the Constitution."
The Supreme Court in its judgment in Tarak Singh vs. Jyoti
Basu explained the concept in the following manner: “Integrity is the
hallmark of judicial discipline, apart from others. It is high time the
judiciary took utmost care to see that the temple of justice does not
crack from the inside, which will lead to a catastrophe in the judicial-
delivery system resulting in the failure of public confidence in the
system. It must be remembered that woodpeckers inside pose a larger
threat than the storm outside.” 5
Civility in a judge is his ornaments and independence his divine
virtue. The independence of judiciary means, no interference in the
judicial functions of the judges either by the Government or the
5
Tarak Singh vs. Jyoti Basu, (2005)1 SCC 201, para 22.
9
Executive Authority. In the older days, not only the executive but even
the king was not supposed to interfere with the judiciary.
Very often we talk of committed judiciary. Justice Vivian Bose,
denounced it and said "I am dead against a 'committed
judiciary'........'dead against robot judges.' He further went on to say "I
stand for an independent, dedicated, not committed judiciary, for
honest and upright judges who have the courage to decide according
to their experience, conscience and convictions.
The following incident is good enough to demonstrate how
fearless and independent the judiciary of this country used to be.
On one occasion Lord Curzon, the Viceroy and Governor- General
(1899-1905) broke his journey at Allahabad while returning from
Shimla to Calcutta and decided to visit the High Court. The Chief
Justice, Sir John Stanley, sitting with Sir Villiam Burkitt, was hearing
arguments of one of the English Barristers. On arrival at the High Court
Lord and Lady Curzon were welcomed by the Registrar who then
ushered them to the Chief Justice's Court. The Viceroy and Vicerene sat
behind the Judges who neither stood up to greet them nor turned to
look back. The Counsel continued his arguments as if nothing had
happened. The proceedings were not stopped, not even disturbed.
10
After a little while the distinguished visitors left as they had come,
without any formal ceremony/felicitation.
In the evening at an 'AT Home' to the Viceroy at Mayo Hall Sir
John Stanley met Lord Curzon. He explained to the Viceroy the courts
conduct during his visit. He said "Your Excellency" you will appreciate,
we represented the Crown at the moment, and it would have been a
disrespect to the Crown if we had allowed the work of the Court to
have been disturbed." The Viceroy gracefully replied, "I quite
appreciate it."
This occurrence shows, amongst other things, how zealously
Judges upheld their dignity and judicial independence vis-a-vis the
Executive.
In the end, a caution is also sounded that a Judge should refrain
to comment on the conduct of any party on the basis of his personal
knowledge and to follow the judicial discipline in discharge of their
official duties.
As a judge, it is our duty to prevent lawyers and all the
stakeholders of the Court including the administrative staff of the court
from engaging in sexist or other inappropriate conduct within the court
precincts. Since our court staff are generally the first point of contact, it
11
is the duty of every judge presiding over a Court to ensure that his
personnel staff also conform to the prescribed norms of conduct.
All judges and even their court staff should refrain from using
abusive or gender-insensitive language, any misbehaviour or any kind
of inappropriate conduct. It is the duty of a judge to ensure that
whosoever is present in his court including administrative staff, lawyers,
litigants, or even interns for that matter are protected from differential
treatment based on caste, race, gender, religion, etc. Everyone shall be
treated with respect and dignity.
Further any statement made by a judge in a court shall be
tempered with care and courtesy. Any derogatory remarks or personal
comments passed by a judge against any person inside the courtroom,
even unintentionally, might not only damage his own reputation but
also distort the portrait of an impartial judicial system in the minds of a
common man.
Five qualities are needed in a judge which are the symbol of
wisdom and I am sure that all of you who are present here must have
heard it somewhere in your judicial career but nonetheless, I would like
to share it once again at the cost of repetition. The first is patience, the
second is listening, the third is understanding, the fourth is pondering
12
and the fifth is practice.6 As Judges we must be careful about how we
engage with our colleagues and lawyers in court and even outside the
court, especially during these modern times when our judicial
behaviour is subject to regular public scrutiny. Circulation of heated
courtroom exchanges amongst judges or between a judge and a
lawyer during a video conference or live proceedings can be seen on
social media.
Therefore, with the rapid use of technology in courtrooms and
greater public scrutiny, courtesy demands that a judge should be all
the more vigilant and refrain from passing scanting or insulting judicial
remarks against a co-judge, lawyers, or any party involved in the
proceedings as it tends to reduce the judicial confidence. After all,
there is a saying that “He who is slow to anger is better and more
honourable than the mighty, And he who rules and controls his own
spirit, than he who captures a city.”7
Judicial behaviour also includes learning and unlearning,
adapting to new and emerging scenarios. As Justice K. Ramaswamy, in
his judgment, Krishna Swami v. Union of India8 mildly puts that
“...The Judge is the living oracle working in the dry light of realism
pouring life and force into dry bones of law to articulate the felt
necessities of the time…”9 These words of Justice Ramaswamy reinforce
6
Justice R..C. Lahoti, Canons of Judicial Ethics, pg. 44, Universal Law Publication, New Delhi, 2005
7
Justice R..C. Lahoti, Canons of Judicial Ethics, pg. 45, Universal Law Publication, New Delhi, 2005
8
Krishna Swami v. Union of India, (1992) 4 SCC 605, para 39.
9
Ibid.
13
that we as judges not only bring life to the law but also change, adapt,
and readopt as per the gravity of the situation.
In the end, I wish to say that as a court of first instance, it is the
judges of the district judiciary who interact with people first, therefore
public trust in the judiciary is the reflection of the behaviour of the
judges of the district courts.
I would urge my brothers and sisters from the district judiciary
that it is your shoulder on which the faith of justice delivery is
entrusted with, sheds the hierarchy of colonialism, caste, class, and
gender, and march ahead with civility and dignity.
ईशवर: र्र् न्यायादाता।
God is my judge.
14
